Gilead Sciences, Inc. v. Academy of Military Medical Sciences

This Procedural Order was issued by the Court of First Instance of the Unified Patent Court (Milan Central Division) on 10 July 2026 under case number UPC_CFI_1968/2026. It concerned a cost decision following revocation proceedings (UPC_CFI_552/25) relating to European Patent No. EP3854403, owned by the Academy of Military Medical Sciences (AMMS). Gilead Sciences, Inc. was the successful party in the revocation proceedings. On 3 June 2026, Gilead applied for an order requiring AMMS to pay EUR 800,000 in recoverable legal costs within four weeks, pursuant to Rule 150 of the Rules of Procedure (RoP). The parties had already settled the amount of recoverable legal costs in the order of hearing.

AMMS, in written submissions dated 26 June 2026, did not dispute the amount claimed by Gilead. However, AMMS requested that payment of costs be stayed pending the outcome of the appeal, relying on Article 74(2) UPCA, or alternatively on Rule 295 RoP, citing decisions of the Milan Local Division (UPC_CFI_1738/25) and the Paris Central Division (UPC_CFI_11/25). In the alternative, AMMS requested payment by instalments. Gilead opposed both requests.

& Analysis

The Court rejected both arguments. On the stay request, the Court reasoned that Article 74 UPCA must be read as a whole. Paragraph 1 establishes the general rule that an appeal does not have suspensive effect unless the Court of Appeal decides otherwise. Paragraph 2 provides automatic suspensive effect only for appeals against decisions on actions or counterclaims for revocation and on actions based on Article 32(1)(d), (e), and (i) UPCA. The Court held that the rationale of Article 74(2) is linked to the specific nature of patent validity—since revocation affects the existence and enforceability of the right itself—but that this automatic suspensive effect cannot be extended to the subsequent and separate determination of costs. The Court emphasized that cost proceedings are conceptually distinct from appeal proceedings on the merits, and that Article 69 UPCA (reflecting Article 14 of Directive 2004/48/EC) establishes the general rule that the unsuccessful party shall bear reasonable and proportionate legal costs of the successful party.

The Court also relied on Court of Appeal case law (Koninklijke Philips v Belkin, UPC_CoA_549/2024; ALPINA Coffee v CUP&CINO, UPC_CoA_44/2026; NUC Electronics v Hurom, UPC_CoA_434/2025) confirming that suspensive effect is exceptional and requires concrete circumstances showing that the appellant's interest in maintaining the status quo outweighs the respondent's interest in enforcement. The Paris Central Division decision in Roche Diabetes Care v Tandem Diabetes Care (UPC_CFI_11/2025) similarly rejected a stay of cost proceedings based solely on the pendency of an appeal on the merits.

Regarding Rule 295 RoP, the Court held that the mere pendency of an appeal does not justify staying separate cost proceedings, citing Carrier Corporation v BITZER Electronics (APL_3507/2024) and bioMérieux v Labrador Diagnostics LLC (UPC_CoA_937/2025). The Court found that AMMS had not identified any circumstance justifying a stay: the amount was uncontested, AMMS's status as a State entity had already been discussed in the merits proceedings, and AMMS had provided only a brief document attesting to its public nature without concrete information on its financial capacity.

The alternative request for payment by instalments was also rejected, as such a modality cannot be imposed without agreement between the parties, and AMMS's alleged payment difficulties had already been addressed in the first-instance proceedings. Finally, Gilead's request for interest on top of the amount claimed was rejected as inadmissible due to being late filed.

Final Order & Ruling

The Court ordered AMMS to pay Gilead EUR 800,000 within four weeks of service of the decision, dismissing all other claims by the parties. The decision was signed by Judge-Rapporteur Andrea Postiglione.